Summary: Mr X complained the Council failed to properly consider reports he made about an extension his neighbour built. We found the Council did not properly consider the relevance of permitted development rights in this case. However, we found that the outcome was unlikely to have been different. We recommended the Council carried out training for officers and apologised to Mr X and his MP for not explaining its position clearly.

The complaint

1. Mr X complains that the Council failed to take action against his neighbour when his neighbour built an extension alongside their shared boundary. Mr X says the extension was not built from similar materials to the existing house and it did not meet Permitted Development rules. He complains the extension projects forward of his house by around 12 feet and is an eyesore which affects his amenity.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I spoke to Mr X and considered information he provided. We asked the Council for information and considered its response.
5. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Town and Country Planning (General Permitted Development) (England) Order 2015

Schedule Two, Part A – enlargement, improvement or alteration of a dwellinghouse

6. This section of the legislation sets limits on the size, height and position of an extension, relative to the original dwellinghouse being extended. Section A.3 (a) states that an extension can only be permitted development if the materials used on the exterior (other than conservatories) are of “similar appearance to those used in the construction of the exterior of the dwellinghouse”.

Schedule Two, Part E – buildings incidental to the enjoyment of a dwellinghouse

7. This section states that a building will not be permitted development if it exceeds 2.5m in height within 2 metres of a boundary or if its capacity is over 3500 litres.

Permitted Development Rights for householders - Technical Guidance, September 2019

8. Page 41 of this guidance states that Class E sets out the rules on permitted development for buildings within the curtilage of a house. It states buildings which are attached to the house are not permitted under Class E (they would be subject to the rules in Class A).

What happened

9. Mr X complained to the Council in summer 2021 via his Member of Parliament (MP) about an extension erected by his neighbour without planning permission. The extension was part metal and part wood. It is attached to the existing property and close to his boundary.
10. In response to Mr X’s MP the Council stated its customer services team had been in extensive correspondence with Mr X and they confirmed the extension met Permitted Development rules. It stated Mr X’s concern about the materials used were not relevant if planning consent was not required in the first place. The Council added that it considered there was little demonstrable harm to Mr X as the structure was barely above the fence line. Mr X told us the structure was around 2 feet (60cm) above the fence.
11. The Council went on to tell Mr X’s MP that, overall, it had been correct to accept the extension was permitted development in size terms. Although the materials were different to the property itself, they did not cause demonstrable harm. The Council stated if it had requested a planning application be submitted, notwithstanding Mr X’s concern about materials, the Council would have had no reasonable grounds to withhold consent.
12. Mr X was dissatisfied with the Council’s response, particularly about the materials used and he complained to the Ombudsman.
13. We asked the Council for background documents. These showed contact with Mr X’s neighbour and advice given to him by the Council, photographs of the extension, as built and documents showing how the Council reached its decision, in 2020, not to take any action.
14. The initial advice the Council gave to Mr X’s neighbour set out the size of structure that would meet PD rules. It stated that there were no requirements for materials. However, after researching the specific property address, the Council told Mr X’s neighbour that permitted development rights had been removed for his property relating to “extensions on the property and walls, fence and other means of enclosure to the front”.
15. A report by the case officer set out his view. This followed a site visit in late 2020. The officer referred to the structure as a side extension. He stated that customer services had already confirmed to Mr X that the structure met PD rules. It stated the structure was permitted development ‘in footprint terms’ and did not require formal planning consent. It stated the concern was the materials used – metal and wood. The report stated the structure was mostly below 2m high. The officer considered there was little demonstrable harm to Mr X because the structure was barely above the fence line and the structure would have received planning permission if it had been applied for. It stated being pragmatic and given the owner only proceeded to instal the structure after being told it met Permitted Development rights, the Council should not pursue the matter further. A manager’s notes on the decision stated they agreed the Council should not pursue this because it created little harm. However, he noted the development could not be permitted development due to the materials used not matching.

Was there fault by the Council

Consideration of the Development

16. There has been fault by the Council. The advice the Council gave to Mr X’s neighbour in 2020 appears to have been an assessment under Section E of Permitted Development rules. It stated that the type of materials did not matter. However, the structure was attached to the house. Permitted Development rules and technical guidance state that when a structure is attached to a house it should be considered as an extension under Section A of the PD rules, not a building under Section E.
17. Section A states that materials should be similar to the existing property, which was not the case here. So, the Council’s initial view of the structure was flawed. Materials did matter. This was fault.
18. When the Council considered the situation following a site visit, there was further fault. The case officer’s report considers the structure as an extension and it states the Council confirmed it is permitted development. The report then appears to consider the requirements of Section A of the permitted development rules. A manager notes that it cannot be PD because materials are not similar. However, the Council knew that permitted development rights under Section A had been removed from Mr X’s neighbour’s property when a previous planning application was granted. So, as the structure was attached to the house, regardless of the size or materials used, the extension could not be permitted development. The property did not have these permitted development rights.
19. The consideration of permitted development rules following the site visit in this case is confused and unclear. The failure to properly establish whether Permitted Development rights applied and whether they were met was fault.
20. As Permitted Development rights did not apply to the structure, the Council should have recognised that it was a breach of planning control. This is because it was development that did not have planning permission. When a Council finds there to be a breach of planning control it can take enforcement action. However, councils should not take enforcement action just because there has been a breach. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact to the public and whether they might grant approval if they were to receive an application for the development or use.
21. While the Council’s consideration of the Permitted Development rights was poor, I note that officers had also considered whether a planning application would likely be approved, if it was requested. It considered whether any harm caused by the development would warrant refusal of permission or enforcement action. It decided, based on a site visit and assessment of the impact, that it should take no further action. Given the Council took this view after seeing the impact of the extension, I do not consider the outcome would have been different if the confusion over permitted development rights had not occurred.

Complaint Response

22. Because the Council did not properly determine whether permitted development rules applied, its response to the complaint was also misleading and flawed. It told Mr X’s MP that permitted development rules applied and that it had told Mr X of this in extensive correspondence. But as permitted development rights did not apply in this instance the Council should have properly explained how it arrived at a discretionary decision that it was not expedient to take planning enforcement action. The lack of proper explanation was also fault.

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Agreed action

23. Within four weeks of my final decision the Council agreed to:
• Write to Mr X and his MP to apologise for the confusion over Permitted Development rights and its failure to properly explain its position on Mr X’s neighbour’s extension. It should explain its position clearly.
• The Council should also carry out appropriate refresher training about Permitted Development Rights with the officers involved in this case.

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Final decision

24. There was fault by the Council. I have now completed my investigation and closed my file.

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Investigator's decision on behalf of the Ombudsman